1. Through instant civil revision under Section 115 CPC, the petitioner has called in question the legality and validity of impugned judgment and decree dated 10.03.2010 passed by the Additional District Judge, Jhelum whereby appeal of respondents No.1 to 3 was accepted and framed additional Issues No.1-A and 1-B and remanded the suits to the trial court for rehearing.
2. Briefly stated the facts of the case are that one Abdul Wahid was the owner in possession of the suit property measuring 20 kanals 19 marlas in the revenue estate of village and Tehsil Sohawa, District Jhelum. The said Abdul Wahid gifted the suit property and transferred its possession to one Karamat Hussain vide registered Deed dated 19.02.1994. After the death of Abdul Wahid on 12.11.1996, respondents No.1 to 3 filed a suit for pre-emption on the ground that the property was in fact sold to Karamat Hussain in lieu of Rs.1,50,000/- but due to malafide to defeat the suit for preemption gift deed was prepared. In the said suit, Issue No.2 was framed which is under:-
“2. Whether the transaction in dispute is a sale and not gift.”
This issue was decided against respondents No.1 to 3 that transaction was gift and not sale. Respondents No.1 to 3 filed an appeal which was also dismissed vide judgment and decree dated 11.06.1998 by learned Additional District Judge, Jhelum. In the meanwhile, the said Karamat Hussain died on 17.06.1994 and mutation No.3776 dated 28.01.1996 for inheritance was sanctioned in favour of Taj Begum, mother, Basharat Hussain, Tariq Mehmood brothers and Sakina Bibi sister of Karamat Hussain who thereafter sold the inherited land in favour of Nasira Malik (petitioner in this case) vide sale deed dated 08.06.2000 and delivered the possession. Respondents No.1 to 3 filed two suits for declaration along with joint possession and cancellation of registered gift deed dated 19.02.1994 sanctioned in favour of Karamat Hussain and suit for declaration with consequential relief which was contested by the petitioner. The petitioner also filed a suit for perpetual and mandatory injunction. From the divergent pleadings of the parties, the learned trial court framed the following consolidated issues:-
i). Whether the registered deed No.41 dated 19.2.1994 and mutation No.3644 dated 5.3.1994 pertaining to impugned land/property is liable to be cancelled on the basis of fraud without consideration and mis-representation? OPP
ii). Whether the registered deed No.71 dated 08.06.2000, mutation No.4340 dated 29.6.2000, general power of attorney No.20 dated 6.5.2000, based on fraud, mis-representation and liable to be cancelled if the issue No.1 is proved in favour of the plaintiffs? OPP.
iii). Whether the plaintiffs Muhammad Altaf, Muhammad Razzaq, Muhammad Nawaz are entitled to a decree of declaration alongwith permanent injunction and mandatory injunction as prayed in their suits, if the issue No.1 and 2 are decided in their favour? OPP
iv). Whether the plaintiff Mst. Nasira Malik is entitled to a decree of permanent injunction as prayed in the suit? OPD
v). Whether the present suit is barred by law? OPD
vi). Whether the present suit is barred by limitation? OPD
vii). Whether the plaintiffs have got no cause of action to file this suit? OPD
viii). Whether the present suit filed by Muhammad Nawaz party is based on mis-statement of facts only to usurp the right of the defendants; hence, it is liable to be dismissed with special costs under Section 35-A of CPC? OPD
Both the parties produced their evidence pro and contra to prove their respective contentions. Respondent No.3/plaintiff No.3 appeared in the witness box as PW-4 whereas Rabnawaz was examined as PW-1, Ghazanfar Ali as PW-2 and Dr. Muhammad Imtiaz Dar as PW-3. In documentary evidence, the certificate issued by PW-3, Dr. Imtiaz Dar was tendered as Exh.P1, copy of report under Section 173 Cr.P.C. as Exh.P/2, copies of FIR No.313, 240 and 433 respectively as Exh.P/3 to Ex.P/5 respectively, copy of report under Section 173 Cr.P.C. as Exh.P/6, attested copy of gift deed as Exh.P/7, copy of Jamabandi for the years 1992-93 as Exh.P/8, copy of death certificate of Abdul Wahid as Exh.P/9, copy of death certificate of Karamat Hussain as Exh.P/10 and copy of Khasra Girdawari from Rabi 1998 to 2000 as Exh.P/11.
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